State Workers’ Criticisms of Boss not Protected

(CN) – Complaints of mismanagement by an official with the Indiana Department of Insurance against the department’s chief deputy are not protected free speech because the manager acted in his official capacity and not as a concerned citizen, the 9th Circuit ruled.

Paul Ogden claimed in district court that his rights to freedom of speech were violated after he was forced to resign as manager of the agency’s title division for writing a memo to the commissioner criticizing the department’s chief deputy, Carol Mihalik. He also asked that his division be removed from her control. The district court ruled in favor of the department, finding that Ogden’s complaints, and his request that his division be relocated, were made in the scope of his employment, not as a concerned citizen. Ogden claimed that Mihalik flouted hiring regulations, misused the division’s funds and fostered a hostile work environment. Ogden also said in his memo that Mihalik was incompetent and corrupt and that if she remained as the division’s head, employees would become less productive and would eventually leave, the ruling states. After the insurance agency’s commissioner received the memo, he called Ogden and Mihalik into a meeting and told Ogden to resign or be fired. On appeal, the three-judge, Indianapolis-based panel agreed with the district court’s ruling. “Because [Ogden] was speaking as a governmental employee and not a citizen when he wrote the memo, the protections of the First Amendment are not implicated,” Judge Diane Sykes wrote.